INTRODUCTION

Though the word 'cognizance' (rooting from Old French "conoisance",

based on Latin "cognoscere") or the words 'taking cognizance' have not
been deciphered and defined in the procedural law, the same derive
definite connotation from plethora of precedents and gain perceptive
explanation and incisive exegesis from judicial pronouncements. While
plain and dictionary meaning thereof is 'taking note of', 'taking account of',
'to know about', 'to gain knowledge about', 'awareness about certain
things' etc.

In law, the common understanding of the term 'cognizance' is "taking

judicial notice by a court of law, possessing jurisdiction, on a cause or
matter presented before it so as to decide whether there is any basis for
initiating proceedings and determination of the cause or matter
'judicially'". Thus, legal sense of taking judicial notice by a court of law or a
Magistrate is altogether different from the view and idea a layman has for
it; however, a broad and general comprehension is 'judicial notice by a
court of law on a crime which, according to such court, has been committed
against the complainant, to take further action if facts and circumstances so
warrant'

In the language of the Hon'ble Apex Court employed in its earliest decision
(Ref: R.R.Chari v. State of U.P. AIR 1951 SC 207), "taking cognizance does
not involve any formal action or indeed action of any kind but occurs as
soon as a Magistrate as such applies his mind to the suspected commission
of offence".

Chapter XIV of the Code under the caption 'Conditions requisite for
initiation of proceedings' employs the word 'cognizance' and the very first
Section in the said Chapter viz., Section 190, outlines as to how cognizance
of offences will be taken by a magistrate of an offence on a complaint, or on
a police report or upon information of a person other than a police officer.
Section 191 empowers the Chief Judicial Magistrate for transfer of a case
taken on file suo motu by a Judicial Magistrate concerned since the
Magistrate himself being a complainant, there may be scope for alleging
prejudice or malice. By virtue of Section 192, a Chief Judicial Magistrate,
who takes cognizance of an offence, by passing administrative order,
transfer the case concerned to the file of any other Magistrate subordinate
to him for inquiry or trial. Section 193 prohibits cognizance of any offence
by a court of Sessions stepping into the shoes of the court having original
jurisdiction except in cases where power is conferred by the statute while
Section 194 empowers Sessions Courts for transfer of cases to the file of
Additional and Assistant Sessions Judges. Section 195 deals with
prosecution for contempt of lawful authority of public servants for offences
against public justice and for offences relating to documents given in
evidence; Section 196 pertains to offences against the State and for
criminal conspiracy to commit the offence; and Sections 197, 198, 198-A
and 199 relates to prosecution of Judges & public servants, prosecution for
offences against marriage, offences under Section 498-A IPC and
defamation respectively. Chapter XV with the title 'Complaints to
Magistrates' contain four sections viz., 200 to 203 regarding examination of
complainant, procedure by Magistrate not competent to take cognizance of
the case, postponement of issue of process and dismissal of complaint.
Sections 204 to 208 at Chapter XVI with the caption 'Commencement of
proceedings before Magistrates' deal with the subsequent proceedings that
would follow after cognizance is taken. It must be taken note of, in cases
where police report is submitted for taking cognizance, the Magistrate may
resort to one of the three options: (i) he may accept the report and take
congnizance of the offence and issue process; (ii) he may disagree with the
report and drop the proceedings or (iii) he may direct further investigation
under subsection (3) of Section 156 and require the police to make a
further report. In a case where the report on the other hand states that, in
the opinion of the police, no offence appears to have been committed,
again, the Magistrate has three opinions viz., (a) he may accept the report
and drop the proceedings; (b) he may disagree with the report and by
holding that there is sufficient ground for proceeding further, take
cognizance of the case and issue process or (c)he may direct further
investigation to be made by the police under subsection 3 of Section 156.
Case laws of the Hon'ble Apex Court wherein the scope
and purview of the term 'cognizance' are vividly
explained,
(i) AIR (38) 1951 Supreme Court 207 R.R.Chari Vs. The State of Uttar
Pradesh Before it can be said that any Magistrate has taken
cognizance of any offence under S.190 he must have applied his
mind to the offence for the purpose of proceeding in a particular
way as indicated in the subsequent provisions of Chapter.
Proceeding U/S. 200 & thereafter sending it for inquiry & report
U/S.202. When the Magistrate applies his mind not for the
purpose of proceeding under the subsequent sections of the
Chapter but for taking action of some other kind, e.g. ordering
investigation u/S. 156(3), or issuing a search warrant for the
purpose of the investigation, he cannot be said to have taken
cognizance of the offence.
(ii) AIR 1959 Supreme Court 1118 (V 46 C 150) Narayandas
Bhagwandas Madhavdas Vs. West Bengal As to when cognizance is
taken of an offence will depend upon the facts and circumstances
of each case and it is impossible to attempt to define what is
meant by taking cognizance. Issuing of a search warrant for the
purpose of an investigation or of a warrant of arrest for that
purpose cannot by themselves be regarded as acts by which
cognizance is taken of an offence. It is only when a Magistrate
applies his mind for the purpose of proceeding under S.200 and
subsequent sections of Ch. XVI of the code of Criminal Procedure
or under S.204 of Ch. XVII of the Code that it can be positively
stated that he had applied his mind and therefore had taken
cognizance.
(iii) (1995) 1 Supreme Court Cases 684 State of W.B. and Another Vs.
Mohd. Khalid and Another Section 190 of the Code talks of
cognizance of offences by Magistrates. This expression has not
been defined in the Code. In its broad and literal sense, it means
taking notice of an offence. This would include the intention of
initiating judicial proceedings against the offender in respect of
that offence or taking steps to see whether there is any basis for
 initiating judicial proceedings or for other purposes. The word
'cognizance' indicates the point when a Magistrate or a Judge first
takes judicial notice of an offence. It is entirely a different thing
from initiation of proceedings; rather it is the condition precedent
to the initiation of proceedings by the Magistrate or the Judge.
Cognizance is taken of cases and not of persons. It has, thus,
reference to the hearing and determination of the case in
connection with an offence.
(iv) 1997 Supreme Court Cases (Cri) 415 Rashmji Kumar (smt) Vs.
Mahesh Kumar Bhada It is fairly settled legal position that at the
time of taking cognizance of the offence, the Court has to consider
only the averments made in the complaint or in the charge-sheet
filed under Section 173, as the case may be. It was held in State of
Bihar V. Rajendra Agarwall (1996 (8) SCC 164) that it is not open
for the Court to sift or appreciate the evidence at that stage with
reference to the material and come to the conclusion that no
prima facie case is made out for proceeding further in the matter.
It is equally settled law that it is open to the Court, before issuing
the process, to record the evidence, and on consideration of the
averments made in the complaint and the evidence thus adduced,
it is required to find out whether an offence has been made out.
On finding that such an offence has been made out and after taking
cognizance thereof, process would be issued to the respondent to
take further steps in the matters.
(v) 1998 (4) Crimes 543 Ponnal @ Kalaiyarasi Vs. Rajamanickam and
11 others No doubt, it is true that the complaint filed by a private
party can be dismissed by the learned Magistrate under Section
203 Cr.P.C., if he thinks that there is no sufficient ground for
proceeding. While exercising his discretionary powers, the
learned Magistrate should not allow himself to evaluate and
appreciate the sworn statements recorded by him under Section
202 Cr.P.C. All that he could do would be, to consider as to
whether there is a prima facie case for a criminal offence, which,
in his judgment, would be sufficient to call upon the alleged
offender to answer. At the stage of Section 202 Cr.P.C. enquiry, the
standard of proof which is required finally before finding the
accused guilty or otherwise should not be applied at the initial
stage. This what exactly done by the learned Magistrate in the
instant case.
SCOPE OF COGNIZANCE OF OFFENCES BY MAGISTRATE
Any Magistrate of the first class and any magistrate of the second class may
take cognizance of any offence. Section 190- 199 of the code describe the
methods by which, and the limitations subject to which, various criminal
courts are entitled to take cognizance of offences. Section 190(1) provides
that, subject to the provisions of S. 195-199, any magistrate of the first class
and any magistrate of the second class especially empowered in this behalf,
may take cognizance of any offences-

a) Upon receiving a complaint of facts which constitute such offence.

b) Upon a police report of such facts.

c) Upon information received from any person other than a police

officer, or upon his own knowledge, that such an offence has been
committed.

S. 190(2) The Chief Judicial Magistrate may specially empower any

magistrate of the second class as mentioned to take cognizance of such
offences as are within his competence to inquire into or try.

The term complaint has been defined in S. 2(d) as meaning: any allegation
made orally or in writing to a magistrate, with a view to his taking action
under this code that some person, whether known or unknown, has
committed an offence, but does not include a police report. It also explain
that A report made by a police officer in a case which disclose, after
investigation, the commission of a non cognizable offence shall be deemed
to be a complaint; and the police officer by whom such report is made shall
be deemed to be the complaint. In the case of P. Kunhu muhammed v.
State of Kerala . it was said: the report of a police officer following an
investigation contrary to S. 155(2) could be treated as complaint under S.
2(d) and S. 190(1)(a) if at the commencement of the investigation the
police officer is led to believe that the case involved the commission of a
cognizable offence or if there is a doubt about it and investigation
establishes only commission of a non- cognizable offence. If at the
commencement of the investigation it is apparent that the case involved
only commission of a non-cognizable offence, the report followed by the
investigation cannot be treated as a complaint under S. 2(d) or 190(1)(a) of
the Code. The expression police report has been defined by S. 2(r) as
meaning a report by a police officer to a magistrate under S. 173(2) i.e.,
the report forwarded by the police after the completion of investigation.
Ajit Kumar Palit v. State of W.B.: What is taking cognizance has not been
defined in the Code. The word cognizance has no esoteric or mystic
significance in Criminal Law or procedure. It merely means become aware
of and when used with reference to a court or judge. to take notice
judicially.

Tula Ram v. Kishore Singh: Taking cognizance does not involve any formal
action, or indeed action of any kind, but occurs as soon as a magistrate, as
such applies his mind to the suspected commission of an offence for the
purpose of proceeding to take subsequent steps towards injury or trial.
Also, When a magistrate applies his mind not for the purpose of proceeding
as mentioned above, but for taking action of some other kind, like ordering
investigation under s.156(3) or issuing a search warrant for the purpose of
investigation he cannot be said to have taken cognizance of the offence.
And the word cognizance has been used in the Code to indicate the point
when the magistrate or a judge first takes judicial notice of an offence.

Pitambar Buhan v. State of Orissa : Taking cognizance includes intention

of initiating a judicial proceeding against an offender in respect of an
offence or taking steps to see whether there is basis for initiating a judicial
proceeding.

Ordinarily a private citizen intending to initiate criminal proceedings in

respect of an offence has two courses open to him. He may lodge an FIR
before the police if the offence is cognizable one; or he may lodge a
complaint before a competent judicial magistrate irrespective of whether
the offence is cognizable or non-cognizable. The object of the Code is to
ensure the freedom and safety of the subject in that it gives him the right to
come to court if he considers that a wrong has been done to him or to the
Republic and be a check upon police vagaries. As observed earlier when a
complaint is filed before a magistrate, the magistrate may simply order
investigation by the police. The police may then investigate the case and
submit the report to the magistrate. In such a situation, when the
magistrate then proceeds with the case, a question of some importance
arises as to whether the magistrate had taken cognizance of the offence on
the complaint before sending it for investigation or whether the case was
sent to the police without taking cognizance of the offence and the
cognizance was taken only on the report submitted by the police. There are
certain advantages to the complaint if cognizance was taken on a
complaint. For instance, in the event of an acquittal of the accused in a
complaint case, the complainant gets a right of appeal. Its now well-settled
that when a petition of complaint is filed before a magistrate the question
whether he can be said to have taken cognizance of the offence alleged in
the complaint under S. 190(1) depends upon the purpose for which he
applies his mind to the complaint. If the magistrate applies his mind to the
complaint for the purpose of the proceeding with the complaint, he must be
held to have taken cognizance of the offences mentioned in the complaint
but on other hand if he applies his mind to the complaint not for any such
purpose but only for the purpose of ordering an investigation or for issuing
search warrant, he cannot be said to have taken cognizance of the offence.

It has been explained that the magistrate while taking cognizance of an

offence, is becoming aware of the commission of that offence and that
awareness continues. So a magistrate would be entitled to take cognizance
of a complaint case after having taken cognizance of the case on police
report. It has also been opined that even if this involved taking cognizance
twice, there is no harm as no provision in the Code prohibits it. However it
is settled that a court can take cognizance of offence only once and after
that it becomes functus officio.

If cognizance is to be taken on a police report under S. 190(1)(b) the report

must be one as defined in S. 2(r). That is the report must be one forwarded
by a police officer to a magistrate under S. 173(2) and not any other report
like preliminary report or an incomplete challan. And it is for the
magistrate to decide whether the police report is complete. His power
cannot be controlled by the investigating agency. On receiving police report
the magistrate may take cognizance of the offence under S. 190(1) (b) and
straightaway issue process. This he may do irrespective of the view
expressed by the police in their report whether an offence has been made
out or not. The magistrate has not to proceed mechanically in agreeing with
the opinion formed by the police, but has to apply his mind and persue the
papers placed before him. He has to apply his mind to all the details
embodied in the police report and to other documents and papers
submitted along with the report. It may be noted that the magistrate takes
cognizance of the offences and not the offender. The magistrate is not
bound by the conclusion drawn by the police and it is open to him to take
cognizance of an offence under S. 199(1)(b) on the basis of the police
report even though the police might have recommended in their report that
there were was no sufficient ground for proceeding further or that it was
not a fit case where cognizance should be taken by the magistrate. It has
been ruled that the magistrate can take cognizance of an offence if he is
satisfied about the material.
According to S. 190(1)(c) the magistrate can take cognizance of any offence
upon the information received from any person other than a police officer
or upon his knowledge. The object is to enable magistrate to see that justice
is vindicated notwithstanding that the persons individually aggrieved are
willing or unable to prosecute. Hence the proper use of the power
conferred by this provision is to proceed under it when the magistrate has
reason to believe the commission of a crime but is unable to proceed
ordinary way owing to absence of any complaint or police report about it.
Therefore the word knowledge as used in the clause (c) should be
interpreted rather liberally so as to subserve the real object of the
provision. It has been opined that if a magistrate takes action under S.
190(1)(c) without having jurisdiction then such trial would be vitiated.

S. 190 provide that under the condition specified in the section certain
magistrate may take cognizance of offences. There are varying opinions of
the Courts on this point. Considering the observation of the Supreme Court
in this connection it may be fairly concluded that a magistrate has certain
discretion but it must be judicial in nature, it is limited in scope. And taking
cognizance does not depend upon the presence of the accused in the court.
In fact he does not have any role at this stage. There is no question of giving
him a hearing when final report of the police is considered. Nor does
refusal to take cognizance of an offence leads to discharge of the accused. It
may be noted that a magistrate can take cognizance of any offence only
within the time-limits prescribed by law. Even after the period of limitation
such offences can be taken cognizance of by the court if the delay is
condoned prior to taking cognizance. The power to take cognizance of an
offence may not be confused with the power to inquire into or try a case.

COGNIZANCE TAKEN BY A MAGISTRATE NOT EMPOWERED

If any magistrate not empowered to take cognizance of an offence under S.

190(1)(a) and 190(1)(b), does erroneously in good faith take cognizance of
an offence, his proceeding shall not be set aside merely on the ground of his
not being empowered.

Purshottam Jethanand v. State of Kutch : If a magistrate takes cognizance

of an offence and proceeds with a trial though he is not empowered in that
behalf and convicts the accused, the accused cannot avail himself of the
defect and cannot demand that his conviction be set aside merely on the
ground of such irregularity, unless there is something on the record to
show that the magistrate had assumed the power, not erroneously and in
good faith, but purposely having knowledge that he did not have any such
power. On the other hand if a magistrate who is not empowered to take
cognizance of an offence takes cognizance upon information received or
upon his own knowledge under S. 190(1)(c) his proceeding shall be void
and of no effect. In such a case it is immaterial whether he was acting
erroneously in good faith or otherwise.

TRANSFER OF CASES AFTER TAKING COGNIZANCE

This includes Transfer on application of the accused under S.191, Power of

the Chief Judicial Magistrate to transfer a case under S.192 (1) and
Magistrate empowered to transfer a case under S. 192(2) of Code of
Criminal Procedure.

1. Transfer on application of the accused when a magistrate takes

cognizance of an offence under clause (c) of subsection (1) of S. 190,
the accused shall, before any evidence is taken, be informed that he is
entitled to have the case inquired into or tried by another magistrate,
and if the accused or any of the accused, if there be more than one,
objects to further proceedings before the magistrate taking
cognizance, the case shall be transferred to such other magistrate as
may be specified by the Chief Judicial Magistrate in this behalf.
2. Power of the Chief Judicial Magistrate to transfer a case S. 192(1)
provides that any chief judicial magistrate may after taking
cognizance of offence, make over the case for inquiry or trial to any
competent magistrate subordinate to him. The section enables the
chief judicial magistrate to distribute the work for administrative
convenience. This section has conferred special power on the CJM as
normally the magistrate taking cognizance of the offence has himself
to proceed further as enjoined by the Code. But an exception has
been made in the case of CJM, may be because he has some
administrative functions also to perform. The transfer can be ordered
only after taking cognizance by the transferring magistrate. The
object of this section is that senior magistrate may find it convenient
to when a magistrate transfers a case under S.192, it is not an
administrative order. It is judicial order in as much as there should
be application of mind by the magistrate before he passes the order
look at most of the cases in the first instance but after taking
cognizance send them for disposal to their subordinates.
3. Magistrate empowered to transfer a case According to S. 192(2)
Any Magistrate of the first class empowered in this behalf by the
Chief Judicial Magistrate may, after taking cognizance of an offence,
make over the case for inquiry or trial to such other competent
Magistrate as the Chief Judicial Magistrate may, by general or special
 order, specify, and thereupon such Magistrate may hold the inquiry
or trial. This subsection enables the CJM to clothe a first class
magistrate with powers like his own under S. 192(1). This again is
useful in order to relieve the CJM of unnecessary burden.

COGNIZANCE OF OFFENCES BY COURT OF SESSION

No court of session shall take cognizance of any offence as a court of

original jurisdiction unless the case has been committed to it by a
magistrate under S. 193 of the Code. When an offence is exclusively triable
by a court of session according to S.26 read with the First Schedule the
Magistrate taking cognizance of such offence is required to commit the case
for trial to the Court of Session after completing certain preliminary
formality. Sometimes the posts of CJM and ADJ are held by one individual.
In such a case the CJM was required to take cognizance and try economic
offences. It was ruled that S. 193 did not apply to that case. For proper
distribution of the work in the court of session and for administrative
convenience, it has been provided that an Additional Session Judge or
Assistant Session Judge shall try such cases as the Sessions Judge of the
division may, by general or special order, make over to him for trial or as
the High Court may, by special order, direct him to try under S.194 of the
Code.

LIMITATION ON THE POWER TO TAKE COGNIZANCE

Sections 195-199 are exceptions to the general rule that any person having
knowledge of the commission of an offence, may set the law in motion by a
complaint, even though he is not personally interested or affected by the
offence. The general rule is that any person having knowledge of the
commission of an offence may set the law in motion by a complaint even
though he is not personally interested in, or affected by the offence. To this
general rule, Sections 195 to 199 of Cr. P.C. provide exceptions, for they
forbid cognizance being taken of the offences referred to therein except
where there is a complaint by the Court or the public servant concerned.
The provisions of these sections are mandatory and a Court has no
jurisdiction to take cognizance of any of the offences mentioned therein
unless there is a complaint in writing as required by the section concerned.
There is absolute bar against the Court taking cognizance of the case under
Section 182 of IPC except in the manner provided in Section 195 of Cr.P.C.
Where the complaint is not in conformity with the provisions of this
section, the Court has no power even to examine the complainant on oath
because such examination could be made only where the Court has taken
cognizance of the case. The absence of complaint as required by the section
is fatal to the prosecution and it is an illegality which vitiates the trial and
conviction.

The Supreme Court, in Bashir-ul-Haq v. State, held that Section 195 of

Cr.P.C. requires that without a written complaint of the public servant
concerned no prosecution for an offence under Section 182, IPC can be
launched nor any cognizance of the case taken by the Court.

Since Section 195 and the succeeding four sections i.e., Sections 196, 197,
198 & 199 impose restrictions on the power of Magistrate to take
cognizance of offence under Section 190, therefore, at the stage of taking
cognizance of an offence, the Magistrate should make sure whether his
power of taking cognizance of the offence has or has not been taken away
by any of the clauses of Sections 195-199 of the Code. Any person may set
the criminal law in motion by filing a complaint even if he is not personally
affected by the offence committed. However, certain restrictions or
limitations have been imposed on the wider powers of the magistrates
power to take cognizance under S. 190 of the code and these restrictions
have been placed under S. 195-199 of CrPC. Sub-section 1(a) of Section 195
provides that no Court shall take cognizance of any offence punishable
under Sections 172 to 188, IPC or of abetment or attempt or criminal
conspiracy to commit such offence. Sections 172-188, IPC relate to offence
of contempt of lawful authority of public servants, for example absconding
to avoid service of summons, preventing service of summons, not
producing a document when so required by a public servant, knowingly
furnishing false information, refusing to take oath etc.

The provision of Section 195(1)(a) being mandatory, any private

prosecution in respect of the said offences is totally barred. Only the
concerned public servants can make a complaint and initiate proceedings
in respect of these offences. The power to make the complaint can be
exercised only by the public servant who is for the time being holding the
office or is a successor-in-office of the public servant whose order is
disobeyed or lawful authority disregarded and thus an offence under
Sections 172 to 188, IPC has been committed. The bar or limitation
imposed by sub-section 1(a) of Section 195 equally extends to both
cognizable as well as non-cognizable offences. It may be noted that all the
offences covered by Sections 172 to 188 of IPC except the one under
Section 188, are non-cognizable offences. It may be noted that Section 195
being mandatory taking cognizance of any offence referred to therein
without a proper complaint by the concerned public servant would be an
illegality which cannot be cured by Section 465 of Cr.P.C. Clause (b) of
Section 195(1) relates to prosecution for offences against public justice. No
Court shall take cognizance of any such offence or of attempt or abetment
or of any criminal conspiracy to commit any such offence, when such
offence is alleged to have been committed in, or relation to, any proceeding
in any Court, except on a complaint in writing of that Court or of some
other Court to which that Court is subordinate.

In the case of Mahesh Chand Sharma v. State of U.P., the appellant filed a
complaint alleging that the respondents (accused persons) had
fraudulently mutated their names in the land record. The land in question
was purchased by the appellant under a registered sale deed. The accused
persons had colluded with the Area Lekhpal and acted behind the back of
the appellant. Held, the offence committed did not relate to Court
proceedings which is the essential requirement for applicability of Section
195(1)(b) (ii). The appellant had lodged the complaint as soon as he came
to kn

ow about the evil designs of accused persons. The Apex Court ruled that the
impugned order quashing taking of cognizance against accused by wrongly
applying provision of Section 195 and resorting to Section 340 (which
relates to procedure in cases mentioned in Section 195) was not proper.

As provided in sub-section (3); term Court for this purpose means a civil,
revenue or criminal Court and includes a tribunal constituted by Central or
State Act. But it does not include a commission appointed under the
Commission of Inquiry Act, 1952.

The Supreme Court, in Santosh Singh v. Izhar Hussain, observed that

every incorrect or false statement does not make it incumbent upon the
Court to order prosecution. The Court should exercise judicial discretion
taking into consideration all the relevant facts and circumstances. It should
order prosecution in the larger interest of justice and not gratify the
feelings of personal revenge or vindictiveness or serve the ends of a private
party.

In the case of R. Ruthinam v. Kamla Vaiduriam, a minor girl was in the

custody of a person who was asked to produce the girl before the Madras
High Court. The person produced a substitute girl identifying her and
asserting her to the same girl. Therefore, the High Court was justified in
lodging a complaint against that person for giving false evidence and
misleading the Court. Where a forged agreement of sale was filed before
the Deputy Registrar Cooperative Societies (Housing) at Hyderabad, a
private complaint for an offence under Section 467, IPC was held to be
maintainable, as the cooperative Registrar is not a Court within the
meaning of Section 195 of the Code. In a case where the accused were
alleged to have forged certain documents and filed a civil suit on the basis
of those forged documents, it was held that procedure contemplated in
Section 195 (2)(b) must necessarily be followed because offences under
Sections 474 and 474-A of IPC are integral parts of the offences covered by
Section 195 of the Code and form the same transaction.

A document is said to be produced in Court when it is placed before the

Court for the purposes of being tendered in evidence or for some other
purpose. Prosecution of a person for giving false statements, by and large,
depends upon the gravity of the false statement and the circumstances
under which such statement was made, also the object of making it and the
impact it has on administration of justice. It has been held that a person
cannot be prosecuted for the offence of perjury unless he has stated on
oath, facts on which his first statement was based and then denied those
facts on oath subsequently. There cannot be a prosecution for alleged
forgery under Section 195 (1)(b)(ii) where a document alleged to be forged
was not itself produced in Court but a copy only of such document was
produced.

The Supreme Court in Sachidanand Singh v. State of Bihar, has clarified

that a prosecution for the offence of forgery would be possible under
Section 195 (1) (b) (ii) only where the forgery was committed while the
document was in custody of Court, i.e., custodia legis, but mere production
of the document would not attract the bar of this section and in that case
prosecution may be launched by any person.

Section 195 (4) deals with the subordination of Courts. It is different from
the subordination of Courts generally for the purpose of Cr.P.C. which is
dealt with in Sections 15 and 23 of the Code. Under this section, the Court
to which appeal ordinarily lies from the appealable decrees or sentences of
the Court, is the Court to which such Court is subordinate and in case of
Civil Court from whose decrees no appeal lies, it is subordinate to the
principal Court having ordinarily original Civil jurisdiction, within whose
local jurisdiction such Civil Court is situate. It has been held that the Court
of single Judge of the High Court is subordinate to the Division Bench of the
High Court which hears appeals from such Court in certain cases.

The two provisos to sub-section (4) deal with (1) subordination of Court
whose appeal to more than one Court lies; and (2) subordination when
there is dual jurisdiction i.e. where appeals from a Court may in certain
cases go to a Civil Court and in other cases to revenue Court. In such cases
the subordination must be decided according to the nature of the case in
connection with which the offence is alleged to have been committed.

These restrictions have been placed on sound policy

considerations and have been considered important for
faster disposal of cases. S. 198 lays down an exception to
the general rule that a complaint can be filed by anybody
even if not connected to the victim and modifies this by
saying that only aggrieved person or person specified
under the section can file a complaint relating to offences
relating to marriage. The object of this section is to
prevent a Magistrate of his own motion inquiring into
cases of marriage, unless the husband or other authorized
person complains so, but once a case has been placed
before him, a Magistrate is free to proceed against any
person implicated. It must be understood that this section
neither confer any power of cognizance on the court nor a
right to complain on the aggrieved person.

COMPLAINTS TO MAGISTRATES
Section 200: Examination of complainant.
A Magistrate taking cognizance of an offence on complaint shall examine
upon oath the complainant and the witnesses present, if any, and the
substance of such examination shall be reduced to writing and shall be
signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need
not examine the complainant and the witnesses
(a) if a public servant acting or purporting to act in the discharge of his
official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another
Magistrate under section 192 :
Provided further that if the Magistrate makes over the case to another
Magistrate under section 192 after examining the complainant and the
witnesses, the latter Magistrate need not re-examine them.

Section 201: Procedure by Magistrate not competent to take

cognizance of the case
If the complaint is made to a Magistrate who is not competent to take
cognizance of the offence, he shall,
(a) if the complaint is in writing, return it for presentation to the proper
Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper
Court.

Section 202: Postponement of issue of process.

(1) Any Magistrate, on receipt of a complaint of an offence of which he is
authorized to take cognizance or which has been made over to him under
section 192 , may, if he thinks fit, 88 [and shall, in a case where the accused
is residing at a place beyond the area in which he exercises his jurisdiction]
postpone the issue of process against the accused, and either inquire into
the case himself or direct an investigation to be made by a police officer or
by such other person as he thinks fit, for the purpose of deciding whether
or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made

(a) where it appears to the Magistrate that the offence complained of is
triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the
complainant and the witnesses present (if any) have been examined on
oath under section 200 .

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit,
take evidence or witness on oath:
Provided that if it appears to the Magistrate that the offence complained of
is triable exclusively by the Court of Session, he shall call upon the
complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by a person not being

a police officer, he shall have for that investigation all the powers conferred
by this Code on an officer in charge of a police station except the power to
arrest without warrant.
Section 203: Dismissal of complaint
If, after considering the statements on oath (if any) of the complainant and
of the witnesses and the result of the inquiry or investigation (if any) under
section 202, the Magistrate is of opinion that there is no sufficient ground
for proceeding, he shall dismiss the complaint, and in every such case he
shall briefly record his reasons for so doing.

COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES.

Section 204: Issue of process
(1) If in the opinion of a Magistrate taking cognizance of an offence there is
sufficient ground for proceeding, and the case appears to be
(a) a summons-case, he shall issue his summons for the attendance of the
accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons,
for causing the accused to be brought or to appear at a certain time before
such Magistrate or (if he has no jurisdiction himself) some other Magistrate
having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-
section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every
summons or warrant issued under sub-section (1) shall be accompanied by
a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other
fees are payable, no process shall be issued until the fees are paid and, if
such fees are not paid within a reasonable time, the Magistrate may dismiss
the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of
section 87.

Under the old Code (i.e. the 1898 Code), it was necessary to refer to the
fourth column of the Second Schedule to ascertain whether a summons or a
warrant should be issued in a particular case. The classification of offences
in the Schedule was, however, not based on any general principle, and was
not the same as between a summons- case and a warrant-case, because a
warrant might have to be issued in a summons-case, and vice-versa. A
simpler procedure was, therefore, considered desirable, so that a summons
would issue in a summons- case, and a warrant in warrant-case, unless
otherwise ordered by the Magistrate.

This change has been incorporated in the present Code, and it is now
provided by S. 204 that if, in the opinion of a Magistrate taking cognizance
of an offence, there is sufficient ground for proceeding, and the case
appears to be

(a) A summon-case:
He must issue his summons for the attendance of the accused; or

(b) A warrant-case:
He may issue a warrant, or if he thinks fit, a summons, for causing the
accused to be brought, or to appear, at a certain time before such
Magistrate or (if he has no jurisdiction, himself) some other Magistrate
having jurisdiction, in the matter.

Moreover, no summons or warrant can be issued against the accused under

this section, unless a list of prosecution witnesses has been filed. If under
any law, any process fee or other fee is payable, no process can be issued
until such fee is paid. If such fees are not paid within a reasonable time, the
Magistrate can dismiss the complaint.

The Madras High Court has held that a neglect to maintain a wife is not an
offence, and therefore, an application for maintenance under S. 125 of the
Code should not be dismissed owing to the applicants failure to comply
with an order for the payment of process fees.
It has also been held that if a complaint is dismissed for non-payment of
process fees, such a dismissal does not amount to an acquittal, and the
complainant is not debarred from filing a fresh complaint in the matter.
(Sheorajasi, 32 Cr. L.J. 203)

It is also to be remembered that, under Article 361 of the Constitution, no

process for the arrest or imprisonment of the President or the Governor of
a State can be issued by any Court during the term of office of such a
person.

When a person files a complaint and supports it by his oath, rendering

himself liable to prosecution and imprisonment if it is false, he is entitled to
be believed, unless there is some apparent reason for disbelieving him, and
he is entitled to have the persons (against whom he complains) brought
before the Court and tried.

The only condition necessary for the issue of process is that the
complainants deposition must show some sufficient ground for proceeding
in the matter. Therefore, unless there is sufficient ground for proceeding
with the complaint, or sufficient material to justify issue of a process, the
Magistrate should not issue the process.

Thus, S. 204 gives a wide discretion to the Magistrate as regards granting or

refusing a process. Needless to say, this discretion should be exercised with
great caution, and an accused should not be dragged into the Court to
answer a charge, merely because a complaint has been lodged against him.

In determining whether he should issue a process or not, the Magistrate

must proceed according to the provisions of the Code, and then if he is of
the opinion that a prima facie case has been made out, he ought to issue the
process. In such a case, he cannot refuse to issue the process merely
because he is of the opinion that the proceedings are unlikely to result in a
conviction. If he finds sufficient evidence against the accused, he must issue
the process. (Subal,53 Cal. 606; Sher Singh,36 C.W.N. 16)

The Calcutta High Court has held that if, from the examination of the
complainant, it appears that there is reason for the issue of process against
all the accused, the Magistrate would be wrongly exercising his discretion if
he issues a process only against some of the accused. In such a case, he
ought to issue a process against all of them. (Bishan, 4 C.W.N. 560)

However, if two counter-complainants prefer complaints before a

Magistrate, he can validly issue a process in one case, and postpone the
issue of a process in the other case, until disposal of the first case.

SCOPE OF S.205

S. 205, which contains a salutory rule of procedure, provides that whenever

a Magistrate issues a summons, he may dispense with the personal
attendance of the accused, and allow him to appear through his Pleader, if
there is sufficient reason for doing so. It will be seen that this section deals
with exemption from initial appearance, and not with exemption from
appearance at the final trial.
This power can be exercised by a Magistrate only when a summons has
been issued, but not when a warrant is issued. However, at any stage of the
proceedings, the Magistrate may, in his discretion, direct the personal
attendance of the accused, and if necessary, enforce such attendance in the
manner prescribed by the Court.

The Mysore High Court has observed that where the alleged offences are of
a serious nature involving moral turpitude, and are punishable with a
sentence of imprisonment, whilst granting exemption under this section,
the status of the accused should not be considered.

Although there is no specific exemption made by S. 205 in favour of a

pardanashin woman, the Magistrate must exercise his discretion in such a
case with reference to the social status of the woman, the custom of the
society, and the nature of the offence. Ordinarily, an exemption from
personal appearance should be granted to such a woman, unless a strong
prima facie case has been made out for ordering otherwise.

Thus, it has been held that a Magistrate is not justified in refusing

exemption to such a woman merely on his impression that she is not a
pardanashin lady, or on the ground that other ladies of the same class, who
were also pardanashin, had appeared in Court out of their own free will.

Thus, in a case decided by the Calcutta High Court, a pardanashin lady

belonging to a very respectable family was summoned under the Bengal
Municipal Act. She applied for permission to appear by a pleader, but the
same was refused by the Magistrate. The High Court held that the conduct
of the Magistrate in insisting upon dragging a respectable lady to Court in a
petty case ought to be seriously condemned.

In another case, when after service of summons, the accused did not attend
in person, but appeared by a pleader, who requested the Magistrate to
dispense with the personal appearance of the accused; it was held that such
an appearance was a valid appearance. In the circumstances, the Magistrate
could not prosecute the accused under S. 174 of the Indian Penal Code, for
disobedience to the summons.

Yet in another case, when the accused, who was ill in bed, was charged with
an offence punishable with a fine only, and had sufficient property within
the jurisdiction of the Magistrate (which would be available for realisation
of the fine, in case of conviction), the Patna High Court held that the
accused ought to be exempted from personal appearance and be allowed to
appear through his Pleader.

SCOPE OF S.206

Under S. 206, if a Magistrate is taking cognizance of a petty offence, and if

the case can be summarily disposed of under S. 260 of the Code, the
Magistrate must (unless he records a contrary opinion in writing) issue
summons to the accused, requiring him either to appear in person or by a
pleader on a specified date, or if he desires to plead guilty without
appearing before the Magistrate, to transmit to the Magistrate before the
specified date, such a plea in writing and the amount of fine specified in the
summons, or to plead guilty through a Pleader and to pay such fine through
the Pleader.

The obvious intent of S. 206 is to avoid unnecessary inconvenience to a

person accused of petty offences, i.e., offences which are punishable only
with a fine not exceeding Rs. 1,000, but excluding offences punishable
under Motor Vehicles Act, or any other law which provides for conviction
of the accused in his absence on a plea of guilty. In such cases, an option is
given to the accused to plead guilty to the charge, and remit the fine
specified in the summons by post, or by messenger, or by a Pleader
authorised by him in writing.

The scope of S. 206 was considerably enlarged by the 1978 Amendment, so

that now the State Government may empower a Magistrate to exercise the
powers under the section with respect to a compoundable offence, or any
offence punishable with less than three months imprisonment, or fine, or
both, if the Magistrate is of the opinion that, having regard to the facts and
circumstances of the case, the imposition of fine only would meet the ends
of justice.

SCOPE OF S.207

S. 207 lays down that in every case where the proceeding has been
instituted on a Police Report, the Magistrate must, without any delay,
furnish to the accused, free of cost, a copy of the following documents:
(i) The Police Report;

(ii) The First Information Report, [recorded under S. 154];

(iii) The statements [recorded under S. 161(3)] of all persons whom the
prosecution proposes to examine as its witnesses, excluding from it any
part in regard to which a request for such exclusion has been made by the
Police Officer [under S. 173(6)];

(iv) The confessions and statements, if any [recorded under S. 164];

(v) Any other document, or relevant extracts thereof, forwarded to the

Magistrate with the Police Report [under S. 173(5)].

If, however, the Magistrate feels that any document referred to in clause (v)
above is voluminous, he may direct that, instead of furnishing a copy to the
accused, the accused is only to be given an opportunity to inspect it, either
personally or through a Pleader in Court.

SCOPE OF S.208

S. 208 provides that in a case which is instituted otherwise than a Police

Report, if it appears to the Magistrate issuing the process that the offence
can be tried exclusively by the Court of Sessions, the Magistrate must,
without any delay, furnish to the accused, free of cost, a copy of each of the
following documents:

(i) The statements (recorded under S. 200 or S. 202) of all persons

examined by the Magistrate.

(ii) The statements and confessions, if any (recorded under S. 161 or S.

164);

(iii) Any documents produced before the Magistrate on which the

prosecution proposes to rely.

If, however, the Magistrate is satisfied that any such document is

voluminous, instead of furnishing the accused with a copy thereof, he may
direct that the accused is only to be allowed to inspect it, either personally
or through a Pleader in Court.
SCOPE OF S. 209

S. 209 then lays down that in a case which is instituted on a Police Report,
or otherwise if it appears to the Magistrate that the offence is triable
exclusively by the Court of Sessions, he must

(a) Commit the case to the Court of Sessions, after complying with Ss. 207
and 208, and in the meanwhile, remand the accused to custody (subject, of
course, to the provisions of the Code relating to bail);
(b) Subject to the provisions of the Code relating to bail, remand the
accused to custody during, and until the conclusion of, the trial;

(c) Send to the Court, the record of the case and the documents and articles,
if any, which are to be produced in evidence; and

(d) Notify the public prosecutor of the commitment of the case of the Court
of Sessions.

S. 210 of the Code has introduced a new procedure to be followed when

there is both a complaint case and police investigation in respect of the
same offence. It provides that, in such a case, the Magistrate must stay all
the proceedings in respect of the inquiry or trial in the complaint case, and
call for a report on the matter from the Police Officer who is conducting the
investigation.

If a Report is made by the investigating Police Officer, and on such a Report,

cognizance of any offence is taken by the Magistrate; the Magistrate must
try the complaint case and the case arising out of the Police Report, as if
both the cases were instituted on a Police Report. If, however, the Police
Report does not relate to the accused in the complaint case or if the
Magistrate does not take cognizance of any offence on the Police Report, he
must proceed with the inquiry or trial stayed by him (as above) as per the
provisions of the Code.

There was no provision corresponding to S. 210 in the old Code. This new
section is intended to ensure that private complainants do not interfere
with the course of justice. According to the Joint Select Committee, when a
serious case is under Police Investigation, some of the persons concerned
sometimes file a complaint, and thereafter promptly get an order of
acquittal, by collusion or otherwise. The further investigation of such a case
by the Police then becomes infructuous, thereby leading to a miscarriage of
justice. It is to avoid this injustice, that the present section finds place in the
new Code.

CONCLUSION
Section 190 of the Code empowers the magistrate to take cognizance of an
offence in cases where the victim does not lodge an FIR in the police station
due to any reason or in cases where the police refuse to admit FIR reported
by any victim. Thus, this provision is meant to safeguard the interests of the
victims while keeping a check on the unfettered powers of the police. The
clause is divided in three exclusive parts which empower the magistrate to
take cognizance upon receiving a complaint of facts or upon a police report
of such facts or upon information received from any person other than a
police officer, or upon his own knowledge, that such offence has been
committed.

The real distinction between sub-clause (c) and sub-clauses (a) and (b) of
section 190(1) is that, in the two latter cases an application is made to the
Magistrate to take cognizance of the offence either by a complaint or by the
police, while in the former case the Magistrate takes cognizance suo motu
either on his own knowledge or on information received from some person
who will not take the responsibility of setting the law in motion. In this
case, the law partly out of regard for the susceptibilities of the accused and
partly to inspire confidence in the administration of justice allows the
accused right to claim to be tried before another Magistrate.

And that these restrictions under S. 195-199 of CrPC, were put in place so
as to maintain the dignity of affected families and also to solve the matters
within the family members. Had everyone been allowed to file a complaint,
then it would have resulted in chaos in the families and loads of cases
would have been registered which might be out of spite to show that family
in bad repute. Though magistrate can take cognizance of the complaint filed
by the persons as mentioned under this section, he can also grant other
persons leave to file a complaint. By these sections, only the most affected
persons are given right to file a complaint as they are considered to be
aggrieved at most. Though the thinking of legislature was noble while
enacting the legislation, there seems to be some gaping holes in the code,
mostly with regard to remedies asserted to women, by which many
husbands have been set free. It is to be understood that the object of CrPC
is not let an accused go but to punish him for his deeds. So the government
must introduce some amendment so as to make these provisions effective.